XXXX XXXX, BEFORE KIMBERLY A. FARRELL, STUDENT AN ...

XXXX XXXX,

* BEFORE KIMBERLY A. FARRELL,

STUDENT

* AN ADMINISTRATIVE LAW JUDGE

v.

* OF THE MARYLAND OFFICE

BALTIMORE CITY

* OF ADMINISTRATIVE HEARINGS

PUBLIC SCHOOLS

* OAH Case No.: MSDE-CITY-OT-14-07867

* * * * * * * * * * * * *

DECISION

STATEMENT OF THE CASE ISSUES

SUMMARY OF THE EVIDENCE FINDINGS OF FACT DISCUSSION

CONCLUSIONS OF LAW ORDER

STATEMENT OF THE CASE

On March 6, 2014, XXXX XXXX (Parent), on behalf of her child XXXX XXXX

(Student), filed a Due Process Complaint with the Office of Administrative Hearings (OAH)

requesting a hearing to review the identification, evaluation, or placement of the Student by

Baltimore City Public Schools (BCPS) under the Individuals with Disabilities Education Act

(IDEA). 20 U.S.C.A. ? 1415(f)(1)(A) (2010). On May 15, 2014, the Parent filed a pleading

seeking to introduce an amended Due Process Complaint. Leave to amend was denied in accordance with COMAR 13A.05.01.15C(7).1

1 This regulations states: (7) In accordance with 34 CFR ?300.508, a party may only amend its due process complaint if the: (a) Other party consents in writing to the amendment and is given the opportunity to resolve the due process complaint through a meeting held pursuant to 34 CFR ?300.510; or (b) Hearing officer grants permission at any time not later than 5 days before the due process hearing begins.

BCPS did not consent to an amendment of the complaint and the motion to amend was denied by an Administrative Law Judge (ALJ) assigned to review pending motions prior to the time a case is formally assigned to a particular ALJ. This case was then assigned to ALJ James Power, who subsequently discussed and affirmed the denial of leave to amend at a prehearing conference.

This case was originally assigned to ALJ James Power. ALJ Power held a telephone prehearing conference on May 19, 2014. The Parent represented herself; Darnell Henderson, Esquire, Associate Counsel, represented BCPS. By agreement of the parties, the hearing was scheduled on the earliest available dates: Friday, June 20, 2014, Friday, June 27, 2014, and Tuesday through Friday July 8-11, 2014.2 ALJ Power issued a Pre-Hearing Conference Report and Scheduling Order (Order) on May 20, 2014. Then ALJ Power passed away suddenly on May 23, 2014. I notified the parties by letter dated June 5, 2014, that the case had been reassigned to me and that the hearing would proceed in accordance with ALJ Power's Order with one very minor exception regarding my requirement that the parties present hearing exhibits in a tabbed and indexed binder.

The Parent emailed a postponement request after the close of business on June 17, 2014. I received it on June 18, 2014. The Parent had not copied BCPS on the request, so I declined to consider it, and notified the parties of receipt of the request and that it was not being considered. The Parent was given the option of re-filing the request with proper documentation and notice to BCPS. She did not renew her postponement request.

On June 19, 2014, BCPS filed a Motion to Exclude Petitioner's Five Day Disclosure Documents and Witnesses. I ruled on the motion at the beginning of the June 20, 2014 hearing day as more fully explained below.

I held the hearing on June 20 and 27 and July 8, 9, and 10, 2014. The evidentiary portion of the case was completed on July 10, 2014, so we did not convene on July 11, 2014 as scheduled. At the hearing, the Parent represented herself. Darnell Henderson, Esquire, represented BCPS. On July 9, 2014, I instructed the parties to submit to me, not later than Friday, July 11, 2014, a document or documents summarizing when changes were made to the

2 The dates were chosen after lengthy discussion, taking into account the Parent's availability and request that the hearing be scheduled on Fridays, BCPS' counsel's trial schedule, and leave previously scheduled by ALJ Power.

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relevant IEPs and what those changes were. BCPS complied with my instructions; the Parent did not.

The parties asked for permission to submit written closing arguments in lieu of presenting oral argument. I granted the request and gave the parties one week, which was until the close of business on Thursday, July 17, 2014, to submit written closing arguments. The Parent left the hearing before BCPS had completed its presentation. I set the due date for closing arguments based on the date the evidentiary portion of the hearing concluded, so the Parent would not have known when written closing argument was due. Accordingly, I sent the parties written confirmation of the July 17, 2014 due date for closing argument. I sent it by email, which seemed to be the parties' preferred means of communication (and which also was likely to result in a quicker notification of the due date to the Parent). I also sent it via the United States Postal Service. BCPS filed its written closing argument on June 17, 2014. The Parent did not file any closing argument.

The hearing dates requested by the parties fell more than 45 days after the triggering events described in the federal regulations, which is the date my decision would have been due. 34 C.F.R. ? 300.510(b) and (c); 34 C.F.R. ? 300.515(a) and (c) (2013). The Parties had a resolution meeting on March 20, 2014, which they continued to April 2, 2014. On April 2, 2014, the resolution meeting was continued to April 29, 2014. The Parent did not attend the scheduled April 29, 2014 resolution meeting and sent notice to BCPS on April 30, 2014, that she no longer wished to participate in the resolution process. ALJ Power considered the triggering event to be the April 2, 2014 resolution meeting and advised the parties during the prehearing conference that the forty-five day period for issuing a decision was within a day of the date the May 19, 2014 prehearing conference was being held. Even if the triggering event is considered to be a

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later date, such as April 29 or 30, 2014, the first available hearing dates fell more than forty-five

days after the triggering event.

The issue of timing was discussed in the prehearing conference and the parties waived the

forty-five day time limit, agreeing that ALJ Power should have an extension of time of thirty

days from the close of the record to issue the decision. This was documented in the Order. The

exact date was to be set when the record actually closed. The record closed on July 17, 2014.

Thirty days from that date is Saturday, August 16, 2014. This decision is issuing prior to August

16, 2014, and is therefore falling within the boundaries set by law and the agreement of the

parties. 34 C.F.R. 300.515; Md. Code Ann., Educ. ? 8-413(h) (2014).

The legal authority for the hearing is as follows: IDEA, 20 U.S.C.A. ? 1415(f) (2010);

34 C.F.R. ? 300.511(a) (2013); Md. Code Ann., Educ. ? 8-413(e)(1) (2014); and Code of

Maryland Regulations (COMAR) 13A.05.01.15C.

Procedure in this case is governed by the contested case provisions of the Administrative

Procedure Act; Maryland State Department of Education (MSDE) procedural regulations; and

the Rules of Procedure of the Office of Administrative Hearings (OAH). Md. Code Ann., State

Gov't ?? 10-201 through 10-226 (2009 & Supp. 2013); COMAR 13A.05.01.15C; COMAR

28.02.01.

ISSUES3

1. Whether the Student is receiving those services called for in his IEP.

2. Whether the Student's placement is appropriate.

3. Whether the Student was entitled to extended school year services for the summer

of 2013.

4. Whether the Parent is entitled to an Occupational Assessment for the Student.

3 The issues are listed here as they appeared in the Order. During the hearing, the Parent clarified that she was not alleging any problems prior to August 2012. As to all issues, she set the starting date of her complaint as August 2012.

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5. Whether the BCPS committed a procedural violation with respect to IEP meetings

and notices for denial of services.

6. Whether the Student is entitled to services other than what is called for in the IEP.

7. Whether the Student was illegally removed from gym class.

SUMMARY OF THE EVIDENCE

Exhibits

I admitted the following exhibits on behalf of the Student:4

Student #1 IEP Team Meeting Attendance Sheet, March 11, 2014 Student #2 IEP Team Meeting Attendance Sheet, February 11, 2014

I admitted the following exhibits on behalf of BCPS:5

Notice of IEP Team Meeting

City School 7 - Notice of IEP Team Meeting 3/07/14 City School 9 - Notice of IEP Team Meeting 1/08/14 City School 10 - Notice of IEP Team Meeting 8/22/13 City School 12 - Notice of IEP Team Meeting 2/14/13 City School 13 - Notice of IEP Team Meeting 2/07/13 City School 14 - Notice of IEP Team Meeting 11/21/12

Individual Education Plan (IEP)

City Schools 18 ? IEP 3/11/2014 City Schools 19 ? IEP 2/11/2014 City Schools 20 ? IEP 9/03/2013 City Schools 21 ? IEP 5/29/2013 City Schools 22 ? IEP 3/06/2013

4 ALJ Power explained at length the need to exchange documents in advance of the hearing during the prehearing conference and set out the specific date by which the document exchange was to take place. There was also discussion during the prehearing conference about what methods of transmission were acceptable and which street addresses, email addresses, or fax numbers could be used to facilitate the process. The Parent did not follow the document exchange provisions set forth in the Order. She did not provide any documents to BCPS or to the ALJ at any time before the hearing. BCPS filed a motion to bar the Parent from presenting any documentary evidence. I ruled that she could offer any IEPs for the relevant time period, and any document which had been attached to her original Due Process Complaint. The Parent did not offer any of these documents during her presentation; however, she did offer two attendance sheets. BCPS did not object to these exhibits and I admitted them as evidence. These two exhibits are located in the brown OAH file in the section inside the back cover. 5 At my request, BCPS submitted a copy of their exhibit book index electronically so that I could cut and paste it into this decision. All exhibits in the book were numbered and tabbed; many were never marked or admitted in the hearing. I have edited the exhibit list to reflect only those exhibits that were admitted into evidence. This accounts for the spotty numbering. For ease of reference, I left the headings BCPS used to divide the exhibits mostly intact.

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